Who Made the Call? Applying the Fundamentals of Pleadings to TCPA Actions

Twombly and Iqbal—two names that invoke fond memories of the first year of law school for the (much) younger attorneys—have defined the bar that each plaintiff must meet to survive a Rule 12(b)(6) motion to dismiss. Walk into any first-year civil procedure class and you’ll hear the students muttering the following like a nursery rhyme or a page from a Dr. Seuss book, “Twombly said ‘enough facts to state a claim to relief that is plausible on its face’ and Iqbal followed ‘[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.'” The lesson the students are supposed to take away is that a complaint must connect the dots between a defendant and the claim.

In a recent ruling issued by the Southern District of California, Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court confirmed that this fundamental requirement applies, unsurprisingly, to Telephone Consumer Protection Act (“TCPA”) claims against multiple defendants. In particular, the court dismissed the TCPA claim because the plaintiff failed to identify who actually called him.

In Ewing, the plaintiff named six defendants in his complaint, alleging that each defendant used an automatic telephone dialing system (“ATDS”) to call his cell phone and home phone at least thirteen times. The defendants included three different companies, two officers of one company, and one officer of another company. One of the corporate defendants filed a motion to dismiss the TCPA claim, arguing that the plaintiff failed to properly connect any defendant—either on a direct liability theory or one framed in vicarious liability—to making the calls and that the plaintiff failed to adequately plead the defendants’ alleged use of an ATDS.

The court agreed with the defendants, finding that the plaintiff failed to (1) “differentiate his allegations against each defendant” and instead impermissibly “lump[ed] defendants together without distinguishing the alleged wrongs amongst defendants,” and (2) “adequately allege[] an agency relationship between the defendants . . . instead offering confusing allegations regarding the role each of the defendants played in the purported scheme.”

The court, however, noted that the plaintiff had met his burden with regard to pleading the use of an ATDS. When accepted as true, the plaintiff’s factual allegations that “repeated calls [were made] ‘within a period of time and the presence of a pause or click'” sufficed to infer that the equipment allegedly used by defendants was an ATDS. However, having “failed to allege the first element of a TCPA claim, namely that [the defendant], or an agent acting on its behalf, called a telephone number belonging to Plaintiff,” the court dismissed the plaintiff’s claim.

For many of us, law school is but a distant memory (or one purposefully forgotten). But Ewing serves as a reminder of a plaintiff’s burden to connect the defendant to the claim, especially in cases involving multiple defendants. With this in mind, all parties involved in TCPA actions should ask the fundamental question: Who made the call?

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